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December 21, 2009

SWAT Cop's Salacious Texts Go to U.S. Supreme Court

When word came last week that the U.S. Supreme Court granted certiorari in the case of a smutty SWAT officer and his explicit text messages, the news quickly spread among government lawyers in California. Meyers Nave lawyers who worked on an amicus brief for the appeal said their phones started ringing pretty quickly.

“I heard from a lot of my colleagues in the municipal law bar,” said firm principal Joseph Quinn, who along with Nancy Thorington, an associate at the 80-lawyer firm, wrote the brief (.pdf) asking the court to review the case. “It really will have an impact on the day-to-day operations of California public entities.”

Where’s the dirty laundry? we ask, after the jump.

The case, City of Ontario v. Quon, revolves around the competing interests of employee privacy, workplace management and public information that government entities have to balance every day in California, Quinn said.

It goes like this — a police officer on Ontario’s SWAT team kept exceeding his text-messaging quota on the city-owned SWAT pagers. The department has a no-privacy policy for its equipment, but a lieutenant said he wouldn’t go poking into anyone’s business as long as they paid for the overages. Then the department decided to audit the messages to determine whether SWAT officers needed a higher text messaging quota. It turned out a lot of the SWAT guy’s messages were, ahem, of a personal nature — i.e. sexy texts to his wife. He sued the city and the wireless carrier, arguing it was an illegal search and seizure that violated his constitutional rights.

A jury found that the search was reasonable in scope and pursued a legitimate government purpose. A Ninth Circuit panel completely disagreed, finding that the city violated the SWAT officer’s rights. The city lost its petition for a rehearing en banc, but seven judges dissented from the en banc denial.

Quinn’s brief supporting the city’s petition for certiorari was filed on behalf of the League of California Cities and California State Association of Counties. They argue that there’s more than the privacy interest of the employee at stake — that a government employer has an interest in managing its workplace, and that there’s also the public’s interest in public information.

The outcome of the case “really will impact the way cities manage themselves as employers,” Quinn said. “It is going to be a really closely watched case.”

In the meantime, if the Ontario newspaper hasn’t already filed a public records request asking for the SWAT officer’s juicy text messages, Legal Pad wonders why on Earth not?